Monkeykiwi v Capital One

[Monkeykiwi]

Hi all

OH received the same sort of fob-off letter from Cap today from Stephanie Duffy, MARKETING MANAGER with covering letter from Ms Renshaw. Will pursue with letter above and let you know what happens. I notice that on the document they have sent through there is no right to cancellation - does that mean it is unenforceable? Also credit limit not on there and for some reason they mention 0% balance transfers ending in May 2009 - not bad considering he's had the card for over 5 years!!!

 

Have sent similar letters to four other cards, and all are in breach of 12 + 2 days ...

 

This forum is amazing, and thanks to all for assistance.

[maroondevo52]

Hello and Welcome, Monkeykiwi.

 

I'll move your post to start a new thread for you, I'll also add the letter you refer too.

 

Dear Sirs,

 

Account Number: XXX

 

Re; your recent reply to my request under section 77-79 of the Consumer Credit Act 1974

 

I note that you have replied to the above by merely sending companies current Terms and conditions. I must inform you that this is not sufficient to comply with the request and that your company is still in default under the act.

 

To clarify, just sending the Terms and Conditions is a breach of the Act and Regulations as, apart from the information that the Regulations provide that you may exclude, the copy must be a “true copy” of the agreement.

 

This breach of the agreement can be demonstrated as follows;

As you will know section 180(1) (b) authorises, “the omission from a copy of certain material from the original, or the inclusion of certain material in condensed form.” This refers to statutory instruments made under the heading Copies of document regulations and in this care in particular to SI 1983/1557.

 

Before leaving section 180 there are two other sections that should be remembered these are:

 

Section 2(2) (a) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not satisfied unless the copy supplied is in the prescribed form and conforms to the prescribed requirements;

 

And more importantly

 

Section 2(b) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not infringed by the omission of any material, or its inclusion in condensed form, if that is authorised by regulations.

 

You will see that this quite clearly states that whilst certain items may be left out of the copy document the rest of the document must be in the form and contain all items as prescribed by the regulations.

 

Turning to the regulations regarding what may be omitted from these copies these are contained with SI 1983/1557.

 

The regulations state:

(2) There may be omitted from any such copy-

(a) any information included in an executed agreement, security instrument or other document relating to the debtor, hirer or surety or included for the use of the creditor or owner only which is not required to be included therein by the Act or any Regulations thereunder as to the form and content of the document of which it is a copy;

(b) any signature box, signature or date of signature (other than, in the case of a copy of a cancelable executed agreement delivered to the debtor under section 63(1) of the Act, the date of signature by the debtor of an agreement to which section 68(b) of the Act applies);

 

It is quite clear what can be omitted from the copy document, this again asserts that all other details of the agreement should presented in form and content as required by the regulations.

 

The requirements of the Agreement regulations 1983/1553 are very explicit in describing the form and content of an agreement and this as I have demonstrated also applies to the copy of any such agreement with the above mentioned proviso.

 

Nowhere within these regulations does it state that part of the agreement can be presented on a separate document headed terms and conditions.

It does state that all terms and conditions should be within the agreement document and is explicit of the form in which it is presented.

 

I hope this explains why your reply was unacceptable I await a true copy of my agreement and would remind you again that whilst the request has not been complied with this account is in dispute.

 

I draw your attention to the legal requirement that a creditor is not permitted to take any action against an account whilst it remains in dispute. The lack of a credit agreement is a very clear dispute and therefore the following applies:

 

You must not demand any payment on this account, nor am I obliged to offer any payment to you.

You must not add any further interest or charges to this account.

You must not pass this account to any third party.

You must not register any information in respect of this account with any of the credit reference agencies.

You must not issue a default notice on this account

 

I hereby give you notice that if you proceed with any of the above actions, I will file reports with the appropriate authorities, including, but not limited to, Trading Standards, Office of Fair Trading, Information Commissioners Office, Financial Ombudsman Service.

 

 

 

Regards.

 

Scott.

[Monkeykiwi]

I would be really grateful if someone could offer any advice on the next steps with this one.

 

So far, we have done CCA request, and follow up letter, to which Ms Renshaw sent the by now well expected 'your account is not in dispute'. We also did the SAR, and it came back with various print-outs of their attemtps to call us - although I am sure not all of them - and a copy of our CCA request, , but nothing remotely looking like a signed Credit Agreement.

 

They have now sent it straight to a DCA. Should I do the whole CCA request with the DCA now or take more decisive action?

[maroondevo52]

Hi,

 

You could try sending this letter to the DCA..............

 

http://www.consumerforums.com/resources/templates-library/86-debt-collectors/574-letter-when-account-has-been-passed-on-whilst-agreement-request-is-in-dispute

 

Regards.

 

Scott.

[Monkeykiwi]

Thanks for the advice Scott - will send in the post tomorrow.

[davey77]

subbing